Two years and two education commissioners ago, many Florida school superintendents and advocates for English-language learners pushed back hard against changes to the state's accountability system that were at the heart of the waiver the state had received from portions of the No Child Left Behind Act.

Chiefly, district leaders and advocates were upset that the performance of English-language learners on state tests in math and reading would be factored into schools' accountability after such students had only had one year of instruction. It was a drastic shift in policy for Florida, where under the state's old accountability system, English-learners' achievement on content tests was not included in how schools were graded until ELLs had had at least two years of instruction. (Federal law requires ELLs to be tested after one year of enrollment in U.S. schools, and Florida had no choice but to include its ELLs' performance on state tests for purposes of federal accountability.)

Gerard Robinson, Florida's education commissioner at the time, insisted that federal education officials would revoke the state's just-issued waiver unless ELLs who had been enrolled in U.S. schools for at least one academic year were included in all aspects of the state's accountability for schools, including their scores on content tests. The state board of education agreed and adopted that change to Florida's school-grading system.

And in its bid for that renewal, Florida education officials are seeking to return to their previous timeline for when ELLs' achievement on content tests must be factored into accountability—the timeline that two years ago the feds said wouldn't fly.

What's different this time around, however, is a new state law in Florida that prohibits the inclusion of ELLs' achievement scores on state tests until they've been in U.S. schools for at least two years. It's not that Florida won't test more recently arrived ELLs, but it would only include their learning gains, or growth, (as opposed to performance scores) on state assessements as part of schools' accountability.

This could present a major conundrum for U.S. Secretary of Education Arne Duncan and his team.

Will a state law that contradicts their own requirements prompt them to relent on this piece of accountability for Florida's 250,000 English-language learners? Will Florida's inclusion of ELLs' growth on academic content tests be enough for the Education Department? And if they do agree to this, does that open the floodgates to other waiver states that would want to follow Florida's lead?

Anne Hyslop, a policy analyst at the New America Foundation, points out that when there has been a conflict between state and federal laws, waiver issues become much trickier for Duncan and his team to resolve with state education officials. That will probably be no different in this case, she said, except that Florida's inclusion of ELLs' growth on content tests in the their first two years of schooling will likely be the focus of negotiation between the feds and Florida officials.

There are certainly strong arguments for broadening the ways in which schools are judged for serving English-learners, including giving them that extra year of instructional time before testing them for accountability purposes on content in a language they are still learning. It's generally accepted that it takes five to seven years for students with no English-language skills to gain fluency.

Stay tuned.

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